Gav18 v Minister for Home Affairs

[2019] FCCA 424

FEDERAL CIRCUIT COURT OF AUSTRALIA

GAV18 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 424

Catchwords:
MIGRATION – Administrative Appeals Tribunal – whether the applicant was notified of the delegate’s decision in accordance with s 494C of the Migration Act 1958 – where Tribunal found did not have jurisdiction – no arguable case of relief made out – application dismissed under r.44.12.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.44.12
Migration Act 1958 (Cth), ss.476, 494C
Migration Regulations 1994 (Cth), reg.4.31

Applicant: GAV18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3237 of 2018

Judgment of: Judge Street

Hearing date: 25 February 2019

Date of Last Submission: 25 February 2019

Delivered at: Sydney

Delivered on: 25 February 2019

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Mr A Gardner
MinterEllison

ORDERS

1. The application is dismissed under r.44.12 of the Federal Circuit Court Rules 2001 (Cth).

2. The applicant pay the first respondent’s costs fixed in the amount of $3,737.00.

DATE OF ORDER: 25 February 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3237 of 2018

GAV18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) that on 23 October 2018 holding that it did not have jurisdiction to review a decision of the delegate made on 26 August 2014. The application for review to the Tribunal was lodged on 3 October 2018.

2. The applicant is a citizen of China who arrived in Australia on 15 June 2012 as the holder of a subclass 573 Student visa which was valid until 15 March 2014. It was not until 10 March 2014 that the applicant lodged an application for a protection visa. In the application provided by the applicant for the protection visa, the applicant identified in answer to questions on the form that he had an agent and provided the details of his agent’s address and authorised communications to his agent. 

3. In accordance with the statutory regime, the Tribunal found that the applicant had been notified of the delegate’s decision made on 26 August 2014 and was dispatched by post to the last address provided by the applicant. The Tribunal therefore found the applicant had been notified of the decision on 4 September 2014 in accordance with s 494C of the Act. The Tribunal accordingly held that the application for review was lodged more than 28 days after the time period required under reg 4.31(2) of the Migration Regulations 1994 (Cth) and found that the Tribunal had no jurisdiction.

4. These proceedings were commenced on 22 November 2019. On 13 December 2019, a Registrar of the Court made orders fixing the matter for a show cause hearing today under r 44.12 of the Federal Circuit Court Rules 2001. The Registrar also made orders giving the applicant an opportunity to file an amended application, affidavit evidence and submissions. No such documents were filed. 

5. At the commencement of the hearing, the Court explained to the applicant the nature of the show cause hearing and the applicant confirmed that he understood the nature of the hearing as explained by the Court. From the bar table, when invited to identify what was wrong with the Tribunal’s decision, the applicant said his agent had made an error, not the Tribunal.

6. There is no evidence before the Court to suggest any fraud by the agent on the applicant. The evidence before the Court identifies an application on which the applicant authorised the agent to receive communications on behalf of the applicant. The applicant put no submissions as to why there was an arguable case that the Tribunal’s decision had no jurisdiction was the subject of relevant error.

7. The grounds in the application are as follows:

   1. I am a Chinese citizen and applied for protection due to well-founded fears of being persecuted by Chinese government. I cannot return to China. If I run forced to leave, I will be in danger.

   2. AAT did not give good consideration for my case, AAT should well check it and 1 am totally a victim of this incident.

   3. It is unfair not to accept my review application. I need protection from Australian government.

8. The application also included four paragraphs under the final orders sought by the applicant which are as follows:

   I disagree with DIBP and AAT's decision. They did not well consider that I have provided to the department with correct postal address and email address for all their correspondence.

   2. I never received their final decision, DIBP should be responsible for it as they have sent their final decision to the wrong email address which I never used.

   3. I was finally realized that I missed DIBP decision through FOI Otherwise I would not even knew about it.

   4. AAT did not well consider and verify the mistake from DIBP.

9. None of the paragraphs or grounds in the application identify anything more than a disagreement with the finding by the Tribunal that it had no jurisdiction. The applicant’s assertion of not receiving the delegate’s decision does not identify any error in the finding by the Tribunal that the applicant was notified in accordance with the statutory regime and that the Tribunal had no jurisdiction in respect of the application for review lodged more than four years after the delegate’s decision and outside the statutory time period. The Tribunal had no power to extend the time. Nothing in the four paragraphs under the prayers for relief identify any arguable error by the Tribunal.

10. In relation to the three paragraphs under the grounds of the application, they seek to advance the applicant’s claim for protection and assert that the decision was unfair. It was the applicant that authorised the agent to act on the applicant’s behalf in the application for protection, and the applicant confirmed the means by which the applicant could be contacted by the department.

11. The Tribunal wrote to the applicant explaining that the application appeared to be beyond the Court’s jurisdiction and gave the applicant an opportunity to respond. The applicant did respond asserting that he had never received a notification, and the Tribunal found that the applicant had in fact been notified in accordance with the statutory regime.

12. As the Tribunal had no jurisdiction, it was not required to consider the applicant’s protection claims. On the face of the material before the Court, the Tribunal complied with the requirements of procedural fairness in determining whether or not the Tribunal had jurisdiction. No arguable case of jurisdictional error is disclosed by the application.

13. I am satisfied that this is an appropriate matter in which to exercise the Court’s powers under r 44.12 of the Federal Circuit Court Rules2001 (Cth). As the application fails to disclose any arguable case for the relief claimed. The application is dismissed under r 44.12 of the Federal Circuit Court Rules 2001 (Cth).

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  2 April 2019